Why Does Bork Have Trouble With A Right To Privacy?

September 29, 1987|By Anita L. Allen, associate professor of law at Georgetown University Law Center, in Washington, and author of ``Uneasy Access: Privacy for Women in a Free Society.``

Everyone expected certain impassioned members of the Senate Judiciary Committee to grill Judge Robert Bork about his controversial views on constitutional privacy rights, and they did. Judge Bork sought to soothe those senators by responding that he does not necessarily oppose privacy itself, only the Supreme Court`s reasoning recognizing a broad, fundamental privacy right. He also disclaimed harboring ``a personal political agenda`` to sweep away existing constitutional privacy precedents.

These assurances notwithstanding, in five days of testimony Judge Bork was unable or unwilling to sketch a mechanism guaranteeing constitutional protection of vital privacy interests, insisting that ``nobody knows what that thing (privacy) means.`` This quickly prompted Rep. Sen. Bob Packwood to oppose the nomination because he is ``convinced that Judge Bork . . . will do everything possible to cut and trim the liberties that the right of privacy protects.``

Privacy rights protecting interests in seclusion, personal information and the intimacies of sex and family life are familiar features of American law. State common law recognizes privacy rights against unreasonable intrusion, false or embarrassing publication and commercial exploitation. Increasingly since the early 1970s, provisions of state constitutions, and state and federal statutes, have been enacted to protect aspects of individual and family privacy. For instance, numerous statutes make it unlawful to disclose confidential information contained in employment, school, tax, medical and criminal justice records.

The federal Constitution protects aspects of privacy, too. Supreme Court cases and constitutional scholarship identify the 1st Amendment`s guarantees of free association and religious liberty as protection for group and family privacy. The 3d Amendment`s proscription of quartering soldiers in private homes in peacetime and the 4th Amendment`s proscription of warrantless search and seizure are protections for the privacy of the home.

The 5th Amendment`s rule limiting compulsory self-incrimination protects the privacy interest of the individual from self-disclosure. The 9th Amendment, whose reservation of rights to the people requires recognition of nonenumerated fundamental rights, is interpreted by many modern scholars and jurists to protect privacy rights, including procreative and sexual autonomy. In his testimony, Judge Bork maintained that while the Bill of Rights does in fact protect certain specific states of privacy, the Constitution as a whole does not protect privacy in general because the founders did not etch the word ``privacy`` in ink.

In fact, Judge Bork repeated his long-standing criticisms of the broad privacy right developed in decades of Supreme Court decisions, including Griswold v. Connecticut, Roe v. Wade and Skinner v. Oklahoma-opinions he dismisses as ``unprincipled,`` ``unconstitutional,`` ``utterly specious`` and ``improper and intellectually empty.`` When questioned by Senate Judiciary Committee Chairman Joseph Biden, Judge Bork conceded that the laws which banned contraceptives and sterilized criminals were ``nutty,`` but offered no rationale for ruling them unconstitutional.

Perhaps most important, Judge Bork contended in the hearings that courts have no guidance in privacy cases because the right to privacy lacks definite ``contours.`` But by their very nature the great concepts and principles of constitutional law-liberty, due process, equal protection, free speech, to name a few-lack definite contours. They impose upon the courts the special duty of reasoned application to concrete cases.

The role of the Supreme Court is to struggle, as it has with success in the abortion cases since Roe v. Wade, to clarify the meaning, requirements and limitations of constitutional rights and principles. Why should the right to privacy be more problematic to apply than other key rights? Judge Bork`s theories give no answer.

New York University Law Prof. David A.J. Richards wrote in ``Toleration and the Constitution`` that ``religious liberty, free speech and

constitutional privacy are linked by a common argument of constitutional principle`` that requires the government to respect ``ways of life expressive of just moral independence.`` By scoffing at a constitutional right to privacy, Judge Bork appears to attach little significance to the deep, complex desire of ordinary citizens to enjoy their lives apart from the control and glare of the government and other intruders. This provides a clear ground for rejecting his nomination.